IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.634 of 2009
Manrup Singh .
Versus
The State Of Bihar & Ors .
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2. 28.06.2011 Heard learned Counsel for the petitioner and the learned
Counsel for the State.
The petitioner was given a show cause notice dated 29.7.2004
by the office of the Chief Engineer, Water Resources Department at
Dehri. It states that the time bound promotions granted to the petitioner
were contrary to the Finance Department letter no. 3683 dated
1`7.5.2003 and the consequential departmental order in pursuance
thereof vide no. 3716 dated 9.6.2003. The petitioner submitted his reply
to the same. Final orders have been passed on 10.1.2006 cancelling
the time bound promotions and shifting the dates as also ordering
recovery. The writ petition encloses an order dated 6.5.2006 that a
bench of this Court in CWJC no. 1009 of 2005 had struck down the
Finance Department Circular dated 17.5.2003. It is therefore apparent
that the show cause notice was based on a specified ground which was
no more available after it was struck down by the Court.
The counter affidavit affirmed by one Sri Dharni Dhar Prasad,
who does not disclose his official status, at paragraph 18 states that the
stricking down of the Finance Department circular dated 17.5.2003 was
inconsequential as the order can still be justified in light of the
departmental letter no. 1503 dated 27.3.1987. The action is therefore
justified in law.
If the show cause notice was based on a specified ground with
regard to a specified circular and the reply furnished, the determination
had to be done on basis of the grounds mentioned in the show cause
notice. It is not open to the respondents to urge one ground in the show
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cause notice and then on challenge laid before the Court finding that
ground to be unsustainable invoke a fresh ground not mentioned in the
show cause notice. This law of Service Jurisprudence stands very well
settled and needs no further discussion. Such order beyond the show
cause notice becomes arbitrary and illegal as the delinquent had no
opportunity to meet the same.
The writ petition specifically pleads the fact of the Finance
Department Circular dated 17.5.2003 having been set at naught by the
Court. The deponent has admitted that ground yet seeks to contest the
matter.
The manner in which the deponent to the counter affidavit seeks
to contest the matter notwithstanding its being indefensible in law,
disturbs the Court. Had he been a little more cautious in reading the writ
petition along with its annexures perhaps casualness of approach on his
part and a stand contrary to the law may have been avoided and could
have saved the unnecessary litigation.
The Court directs the Commissioner cum Secretary, Water
Resources Department to examine the indefensible stand taken by the
deponent before this Court contrary to the State Litigation Policy more
particularly with regard to indefensible causes and take appropriate
administrative action.
The very substratum having admittedly been knocked down by
annulment of the circular dated 17.5.2003 by judicial pronouncement
the show cause notice itself becomes illegal. Any final order passed on
the same is therefore of no significance.
The Court formally declares the impugned order dated
10.1.2006 to be illegal. It is accordingly quashed. Any recovery made in
pursuance thereof is directed to be refunded to the petitioner in
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accordance with law within a maximum period of two months from the
date of receipt and/or production of a copy of this order.
The writ application stands allowed.
Snkumar/- (Navin Sinha,J.)